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George H. Fields v. Western Millers Mutual Fire Insurance Co., By Original Summons, and Western Millers Mutual Fire Insurance Company v. George H. Fields and Ellis R. Lake, By Counterclaim
Crapser, Bliss, Heffeman and Schenck, JJ., concur; Hill, P. J., dissents in a memorandum. Hill, P. J. (dissenting). The policy had been cancelled as to vendees but not as to the vendors. The determining factor is who paid for the policy. If the vendor paid an assignment may be taken. (Foster v. Van Reed, 70 N. Y. 19.) If the policy was obtained and paid for by the vendees the debt was extinguished. (Barile V. Wright, 256 N. Y. 1.) The complaint alleges that the vendee paid the premium. This is denied in the answer.
The order should be reversed and the issues determined at a trial.